Edwardo Olguin v. Brian Kibler

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2024
• Docket: 21-16953
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDWARDO VINCENT OLGUIN, No. 21-16953

Petitioner-Appellant, D.C. No. 2:21-cv-00368-JAM-EFB v.

BRIAN KIBLER, Warden, HDSP, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted February 15, 2024 San Francisco, California

Before: MILLER, BADE, and VANDYKE, Circuit Judges.

In 2017, following a jury trial in California state court, Edwardo Olguin was

convicted on eight counts of committing a lewd or lascivious act on a child in

violation of California Penal Code § 288. He was sentenced to an indeterminate

prison term of 100 years to life, plus a consecutive term of 22 years and 8 months.

The California Court of Appeal remanded for the narrow purpose of allowing the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. trial court to exercise its discretion in determining whether to strike a prior serious

felony conviction for purposes of imposing certain sentencing enhancements, and

otherwise affirmed. Olguin then filed a petition for a writ of habeas corpus in

federal district court. The district court denied the petition, and Olguin appeals. We

have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

We review the district court’s judgment de novo. Panah v. Chappell, 935

F.3d 657, 663 (9th Cir. 2019). Federal habeas review of a state-court conviction is

limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214. Under AEDPA, when a claim has been

“adjudicated on the merits in State court proceedings,” a federal court may grant

relief only if the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

AEDPA prescribes a “highly deferential standard for evaluating state-court

rulings,” Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), requiring a petitioner to

“show far more than that the state court’s decision was ‘merely wrong’ or ‘even

clear error,’” Shinn v. Kayer, 592 U.S. 111, 118 (2020) (per curiam) (quoting

Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (per curiam)). To obtain relief, a

2 petitioner “must show that the state court’s decision [was] so obviously wrong that

its error lies ‘beyond any possibility for fairminded disagreement.’” Id. (quoting

Harrington v. Richter, 562 U.S. 86, 103 (2011)); see Gibbs v. Covello, 996 F.3d

596, 603 (9th Cir. 2021).

Olguin argues that the state court unreasonably determined that, although he

established that his trial counsel’s performance was deficient, it was not prejudicial

under Strickland v. Washington. 466 U.S. 668 (1984). See id. at 694 (holding that,

to establish prejudice, a “defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different”). The state court agreed with Olguin that counsel was

deficient in failing to object to prosecution testimony that improperly vouched for

the victim’s credibility. But the court concluded that Olguin could not establish

prejudice because “the case against [Olguin], independent of the challenged

testimony, was very strong.” In particular, the court stated that “[t]he victim’s

testimony recounting the abuse she endured at the hands of defendant was both

internally consistent and consistent with her prior statements disclosing the abuse.”

It also observed that the victim had confided in several friends and relatives who

“each testified to the emotion the victim displayed when talking about the abuse,”

and that the abuse the victim described was similar to Olguin’s prior offenses

against young girls. The court concluded that “there is no reasonable probability of

3 an outcome more favorable to defendant had his trial counsel objected to the

improper testimony,” and therefore Olguin did not suffer prejudice under

Strickland.

Olguin argues that the state court’s prejudice analysis was unreasonable, but

he does not point to any Supreme Court case law bearing on his arguments with

enough specificity to “squarely address[] the issue.” Wright v. Van Patten, 552

U.S. 120, 125–26 (2008) (per curiam). Instead, Olguin is left with only Strickland

itself. Although Strickland constitutes clearly established federal law for the

purposes of AEDPA, Cullen v. Pinholster, 563 U.S. 170, 189 (2011), it sets forth

only a general standard, leaving state courts with significant “leeway . . . in

reaching outcomes in case-by-case determinations,” Yarborough v. Alvarado, 541

U.S. 652, 664 (2004).

We cannot say that the California Court of Appeal unreasonably conducted

its case-specific assessment of the effect of Olguin’s counsel’s deficient

performance. Olguin emphasizes that the victim’s account of her abuse was not

entirely consistent, but the state court acknowledged that the victim did not

disclose all the details of the abuse in her initial interview. As the court observed,

however, the properly admitted testimony of a prosecution expert explained that

delayed disclosure is “not uncommon among children who have suffered sexual

abuse.” Olguin also objects to the state court’s reliance on the victim’s display of

4 emotion, but a witness’s “demeanor while testifying” may appropriately be

considered in evaluating credibility. See Cal. Evid. Code § 780(a). As to Olguin’s

prior offenses, Olguin highlights differences between those offenses and the

offense at issue here, but the state court could reasonably give greater weight to the

relevant similarities. In sum, Olguin has not come close to “show[ing] that the state

court’s decision [was] so obviously wrong that its error lies ‘beyond any possibility

for fairminded disagreement.’” Shinn, 592 U.S. at 118 (quoting Harrington, 562

U.S. at 103).

AFFIRMED.